Frequently Asked Questions About Legal Separation
Even though a legal separation isn’t as final as an official divorce, it is a big step that should not be taken lightly. People separate for a variety of different reasons, whether they’re using this as a stepping stone before a divorce or choose to take some time to reevaluate what they want out of their relationship. In any case, it’s important to consider how a separation could impact your life.
If you and your spouse are thinking about separating, either temporarily or permanently, make sure you know what to expect. Below, we answer some of the most frequently asked questions about legal separation in Oregon.
Q: How does a legal separation differ from a divorce?
A: In many ways, a legal separation and a divorce are very similar. Both are legally binding and can help couples divide assets and establish child custody, all while living separately. A separation is usually much less expensive than a divorce, easier to obtain, and it could help either spouse continue to enjoy certain medical or insurance benefits. However, a legal separation does not end the marriage, which means neither spouse can remarry.
Q: Are there legal requirements I need to meet before filing for a separation?
A: Unlike filing for a divorce, separating in Oregon does not require a waiting period or a length of residency for the couple in question. At least one spouse must be a current resident of Oregon at the time the petition for separation is filed, but the state does not require that they live in Oregon for a specific period of time. A couple can also choose to separate on grounds of irreconcilable differences, much like they would in a divorce.
Q: What’s the difference between a trial separation and a legal separation?
A: Oregon offers couples the option to separate legally or on a trial basis. A trial separation is not legally binding, it simply allows a married couple to enter into an informal agreement where they choose to live apart. Most couples choose a trial separation if they wish to work on their marriage and get back together. However, if a couple chooses to take more drastic measures, they may obtain a legal separation. Unlike a trial separation, a legal separation requires official paperwork on marital matters, such as finances, property division, child custody, and so on.
Q: What is a separation agreement?
A: A separation agreement is comparable to a divorce decree in that both act as final legal documents to seal any arrangements between the two spouses. Once a couple has petitioned for a separation, they can then go through the details regarding child custody, child support, property division, and other important aspects of their separation. When negotiations are finished, the legally binding decisions will be stipulated in the separation agreement.
If a couple does decide to divorce in the future, the separation agreement could be an effective tool in helping to speed the divorce process along. In other words, this document could serve as a guideline in the divorce.
Q: How do I get a legal separation?
A: In order to separate from your spouse, you or your spouse must file for a legal separation with your local court. A family law attorney can also help with this process. Once the petition has been filed, the spouse who filed for the separation must submit a petition and summons to the court, they must also serve the separation documents to the other spouse. After the separation has been filed and served, the Oregon court will enact a restraining order that prohibits both spouses from using marital assets for inappropriate purposes. However, marital assets are permitted for attorney’s fees for the separation, real estate taxes, income taxes, medical needs, and daily essentials (food, clothing, rent, etc.).
The judge working on your case may also issue a separation agreement, which only lasts for a set amount of time, usually no longer than a year.
Q: How will my legal separation affect my children?
A: If you and your spouse share children, you’re probably worried about how a separation could alter their daily lives. Because the legal separation process is so similar to a divorce, it will also affect children similarly. However, much of what affects your children has to do with how you and your spouse choose to continue parenting them. You may choose to share custody of your children, moving them back and forth between your homes, or you may choose to keep them in the marital home. A legal separation gives you the freedom to come up with a parenting plan that best suits your family, so you and your spouse can decide to do whatever you feel is best for your children. Also, if one spouse earns more or if one parent acts as the primary caretaker, you might work out a child support arrangement.Are you considering a legal separation? Contact McKinley Irvin at our Oregon office to meet with our divorce lawyers to discuss your options.